Citation Nr: 9816757
Decision Date: 05/29/98 Archive Date: 06/03/98
DOCKET NO. 97-29 767 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Togus,
Maine
THE ISSUES
1. Entitlement to service connection for a left knee
disorder as secondary to the service-connected bilateral heel
disabilities.
2. Entitlement to service connection for a low back disorder
as secondary to the service-connected bilateral heel
disabilities.
3. Entitlement to an increased rating for residuals of
fracture of left heel, currently evaluated as 20 percent
disabling.
4. Entitlement to an increased rating for residuals of
fracture of right heel, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: Maine Division of Veterans
Services
WITNESSES AT HEARING ON APPEAL
Appellant, and spouse
ATTORNEY FOR THE BOARD
C. Hickey, Associate Counsel
INTRODUCTION
The veteran had active service from June 1973 to September
1973, and from November 1980 to February 1983, as well as an
additional period of unverified service.
This appeal to the Board of Veterans' Appeals (Board) arises
from the August 1997 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) which denied
service connection for a back disorder and a left knee
disorder, each claimed as proximally due to the service-
connected bilateral heel disabilities, and denied increased
ratings for bilateral heel disabilities.
On January 14, 1998, a video-conference hearing was held
before C.W. Symanski, who is the member of the Board
rendering the determination in this case and was designated
by the Chairman to conduct that hearing, pursuant to 38
U.S.C.A. § 7102(b)(West 1991).
CONTENTIONS OF APPELLANT ON APPEAL
It is contended by and on behalf of the veteran that he is
entitled to service connection for a back disorder and a left
knee disorder, each claimed as proximately due to the
service-connected bilateral heel disabilities.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims folder. Based on our review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the evidence warrants
secondary service connection for a low back disorder and a
left knee disorder. Consideration of the issues of increased
evaluations for bilateral heel disabilities is deferred
pending further development on remand.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran's claims has been developed.
2. The evidence shows that the veteran’s chronic low back
strain is aggravated by pain and altered gait resulting from
his service-connected bilateral heel disabilities.
3. The evidence shows that the veteran’s left knee disorder
is aggravated by pain and altered gait resulting from his
service-connected bilateral heel disabilities.
CONCLUSIONS OF LAW
1. Aggravation of a left knee disorder is proximately due to
or the result of the service-connected bilateral heel
disabilities. 38 U.S.C.A. §§ 1153, 5107 (West 1991); 38
C.F.R. §§ 3.303, 3.304, 3.306, 3.310 (1997).
2. Aggravation of a low back disorder is proximately due to
or the result of the service-connected bilateral heel
disabilities. 38 U.S.C.A. §§ 1153, 5107 (West 1991); 38
C.F.R. §§ 3.303, 3.304, 3.309, 3.310 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
At the outset, the Board finds that the veteran has met his
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that his claims are well-
grounded; that is, the claims are plausible. Additionally,
there is no indication that there are unobtained records
which are available and which would aid a decision in this
case. Accordingly, we conclude that the record is complete
and that there is no further duty to assist the veteran in
developing the claims, as mandated by 38 U.S.C.A. § 5107(a).
Service connection connotes many factors, but generally it
means that the facts, as shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces, or if
preexisting such service, was aggravated therein. 38 U.S.C.A.
§§ 1110, 1131, 1153 (West 1991). The law also provides that
disability which is proximately due to or the result of a
service-connected disability shall be service-connected.
38 C.F.R. § 3.310. When service connection is thus
established for a secondary condition, the secondary
condition is considered part of the original condition. Id.
Furthermore, the United States Court of Veterans Appeals
(Court) held in Allen v. Brown, 7 Vet.App. 439 (1995)(en
banc), that the term "disability" as used in 38 U.S.C.A.
§ 1110 (West 1991), refers to impairment of earning capacity,
and that such definition of disability mandates that any
additional impairment of earning capacity resulting from an
already service-connected condition, regardless of whether or
not the additional impairment is itself a separate disease or
injury caused by the service-connected condition, shall be
compensated. Thus, pursuant to 38 U.S.C.A. § 1110 (West
1991) and 38 C.F.R. § 3.310(a) (1997), when aggravation of a
veteran's nonservice-connected condition is proximately due
to or the result of a service-connected condition, such
veteran shall be compensated for the degree of disability
over and above the degree of disability existing prior to the
aggravation.
The record shows that in January 1985 the veteran reported
discomfort in the knees following exercise. In December 1996
he complained of recurrent episodes of low back pain with
some radiation into the right hip, and occasionally into the
right groin. He also claimed that the condition of his left
knee, which occasionally snapped or crunched, had been
affected by his gait and his bilateral heel disorders.
Physical examination of the low back showed iliac crests were
level. Truncal flexion was 70 degrees, with lateral bending
and rotation 10 degrees and extension 5 degrees. There was
no sciatic notch tenderness. Straight leg raising was
40 degrees bilaterally. With regard to the left knee,
patellofemoral crepitation was 3 plus. There was full range
of knee motion, and no effusion or medial ridging, with
ligaments described as okay. X-rays of he lumbar spine and
knees were negative. The pertinent diagnoses were
chondromalacia patellae, bilateral, and chronic low back
strain.
The examiner commented that the veteran's low back strain was
as much caused by markedly protuberant abdomen and obesity as
by gait changes. He added that if one assumed that the
weight gain was caused by forced inactivity related to
painful heels, then one would have to say that the service-
connected disabilities had caused or aggravated the low back
strain. The same logic applied to aggravation of the
veteran's knee disorder.
In a January 1997 addendum to the examination report, the VA
examiner indicated that, although the veteran's low back and
knee conditions were not caused by his painful heels, the
latter was an aggravating factor in the chronic back strain,
and also affected the chondromalacia patellae, inasmuch as
painful heels were partially responsible for forced
inactivity and weight gain.
In another addendum dated in July 1997 the same VA physician
added that the service-connected bilateral fractures of the
os calcis created recurring pain and altered gait, thereby
aggravating episodes of low back pain and most likely
aggravating pain in the knees due to an already existing
chondromalacia patellae, or accelerated a predisposition for
the same. In still another addendum, dated one week later,
the examiner stated that the degree of aggravation of the low
back condition and chondromalacia patellae could not be
accurately determined.
When the veteran testified at his personal hearing before the
Board in January 1998 he related that he first noticed pain
in the back and left knee approximately in 1989, with pain
gradually increasing over the ensuing years, but no specific
trauma that he recalled. The veteran indicated that doctors
had told him his knee and back disorders were caused by
excessive weight.
On evidentiary evaluation the Board notes that the opinions
of the VA medical examiner are uncontroverted, and constitute
significantly probative evidence, inasmuch as they reflect a
comprehensive review of the veteran's medical history in
conjunction with applicable medical authority. It is
concluded that the evidence indicating that the veteran's low
back and left knee disorders were aggravated by his service-
connected heel disabilities, is at least in equipoise with
the countervailing evidence. Resolving doubt in the
veteran’s favor, the Board finds that service connection for
low back disability and left knee disability, as secondary to
the veteran's service-connected bilateral heel disabilities,
is therefore warranted. Allen v. Brown, 7 Vet.App. 439
(1995).
ORDER
Service connection is granted for low back disability and
left knee disability as secondary to the veteran's service-
connected bilateral heel disabilities.
REMAND
On review of the record the Board notes that the evidence
reflects multiple clinical findings related to the feet and
ankles, without a clear indication of which conditions are
considered to be medically related to the bilateral heel
fractures sustained in service. Additional medical
evaluation is warranted to clarify the nature and extent of
the residuals of the veteran's service-connected injuries.
In this regard up-to-date medical records should first be
compiled.
Therefore, the case is REMANDED for the following actions:
1. The RO should contact the veteran and
request that he provide the names and
addresses of all health care providers,
VA or private who have treated or
evaluated him for symptoms related to his
lower extremities since December 1996.
After obtaining any necessary releases,
the RO should request copies of any
previously unobtained, pertinent
treatment records or examination reports
for association with the claims folder.
2. Thereafter arrangements should be
made to have the veteran undergo a
special orthopedic examination in order
to assess the nature and extent of
residuals of the service-connected heel
fractures. All special tests and x-ray
examinations deemed necessary should be
conducted. The claims folder should be
made available to the examiner for
review. The examiner’s report should
clearly describe all symptoms, clinical
findings and disorders which are
considered to be the result of injuries
sustained in service. Any symptoms found
to be the result of any non-service
connected foot disorder should be
specified for the record. All opinions
should be supported by reference to the
medical evidence.
3. Following the completion of all above
requested actions, the RO should also
review the veteran’s increased rating
claims on the basis of all evidence of
record and all applicable law and
regulations. If any action taken remains
adverse to the veteran, he and his
representative should be provided a
supplemental statement of the case and a
reasonable period for response thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
further action until he is informed. The purpose of this
REMAND is to obtain additional medical information. No
inference should be drawn regarding the final disposition of
the claims as a result of this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
C.W. Symanski
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
Supp. 1995), a decision of the Board of Veterans’ Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402 (1988). The date that appears on
the face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans’ Appeals. Appellate rights do not attach to those
issues addressed in the remand portion of the Board’s
decision, because a remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the
merits of your appeal. 38 C.F.R. § 20.1100(b) (1997).
- 2 -